Amend Flawed Confiscation Law

March 25, 1990

Two centuries ago, British statesman Edmund Burke said that bad laws are the worst form of tyranny.

Today, a particularly bad Florida law is encouraging tyranny by police. It has turned many law officers into legal bandits who violate people`s constitutional rights, seize their property without cause, extort money from them and impose heavy financial punishment without a conviction and sometimes without even an arrest.

State lawmakers should correct the flaws in this unjust, unfair statute quickly, although reform hopes are dim. Sheriffs and police chiefs use the law as a huge money-maker so they can buy police equipment and build jails without unpopular property tax increases.

The Fort Lauderdale Police Department had a $4.6 million cash balance in its confiscation account at the end of 1989.

In theory, the 1980 Florida Contraband Forfeiture Act sounds attractive: Crack down on drug dealers and other criminals with a separate civil penalty, besides any criminal fine or jail term. Let police confiscate and sell their cars, boats, homes, cash or other property involved in the crime.

In practice, however, the law`s good purpose has been subverted by its own improper wording and by overzealous law officers.

A recent Sun-Sentinel news story unveiled one innocent man`s Kafkaesque story, which is becoming all too common.

Last July, Davie Police temporarily seized a 1982 Corvette driven by Tom Chernasky of Plantation after arresting him on suspicion of possessing cocaine. Although a later lab test found no cocaine and although prosecutors dropped the charge, police didn`t tell Chernasky. Nor did they take him to civil court, letting him challenge their confiscation.

Instead, police pressed him for an out-of-court settlement. He gave in and paid the police $4,000 to get his car back, plus $893 to a towing firm for storage.

Chernasky is right. ``This was legal robbery.`` He should have gotten his car back for free.

Critics of the law, including some criminal defense attorneys, law professors, the American Civil Liberties Union and even some judges, say police often stretch the law far beyond its original intent.

To protect the innocent, state lawmakers should revise the statute to:

-- Permit temporary property seizures by police only after an arrest based on probable cause. Appeals courts have upheld some seizures without an arrest.

-- Allow permanent confiscation by judges only after a person is convicted of or pleads guilty or no contest to a felony.

-- Require immediate return of seized property when someone is found innocent or when charges are dropped.

-- Require police to pay attorney`s fees for someone if a judge upholds his legal challenge of a police seizure. Sometimes, some victims of improper seizures don`t file legal challenges because their attorney fees would exceed what they expect to recover.

-- End out-of-court settlements like that used in the Chernasky case, which offer the biggest potential for abuse.

-- Remove the ``profit motive`` from individual police agencies by requiring that profits from confiscations go either to the local city council or county commission, which should also determine how the money is spent.

Punishment without arrest or conviction is a police-state tactic and a miscarriage of justice. It is also a violation of civil liberties, including Fourth Amendment protections against unreasonable searches and seizures and 14th Amendment protection against government taking property without due process of law.